E-Blasts

While the contentious 2016 election is finally over, folks on both sides of the aisle are far from done talking about the results. Regardless of personal political beliefs, it is important for employers to remember that an employer’s political talk in the workplace can expose the company to liability. Political debate often brings up polarizing topics, for example immigration or religion. Employees may feel unwelcome in the workplace when their political beliefs or their candidates of choice do not align with their employer’s, potentially leading to claims of discrimination or retaliation. Thus, employers (and their management teams) should use caution when discussing politics in the workplace.

California voters have passed Proposition 64, legalizing marijuana for recreational use for adults over the age of 21. However, because marijuana is still classified as a Schedule I substance and is illegal under federal law, employers will still have the right to maintain a drug free workplace.

First, Prop 64 will not take effect immediately. While individuals will be allowed to grow, possess and smoke certain amounts of marijuana recreationally after its official passage, dispensaries will not be licensed to sell recreational marijuana until January 1, 2018.

Second, the use of marijuana may still be prohibited in the workplace. Prop 64 states that its intent is to “allow public and private employers to enact and enforce workplace policies pertaining to marijuana.” Further, the law states that it will not be construed or interpreted to:

The Saqui Law Group previously discussed significant changes to the California Fair Pay Act (i.e., Labor Code section 1197.5) made by Senate Bill 358, which was passed into law last year.  That E-Blast can be found here As a refresher, Senate Bill 358 put the burden on the employer who is sued to show that any pay difference between men and women performing substantially similar work was based on: 1) A seniority system; 2) A merit system; 3) A system measuring earnings by quantity or quality of production; or 4) By some other factor that is not based on sex but is related to the position in question and is a business necessity.

Emboldened by its success, the California legislature passed two additional bills this year – Assembly Bill 1676 and Senate Bill 1063 – that further expand the reach and impact of the California Fair Pay Act. 
Assembly Bill 1676 expressly prohibits employers from considering prior salary as the sole justification for any disparity in compensation.  Before it was amended, this bill also would have prohibited employers from seeking an applicant’s salary history.  However, California will not go as far as some states, such as Massachusetts, which recently prohibited employers from requesting compensation history prior to making an offer and will, instead, allow employers to continue to request prior salary information.

For any employment contract entered into, modified, or extended on or after January 1, 2017, employers can’t require employees who primarily reside and work in California to arbitrate or litigate disputes outside the state or under another state’s laws if the claim or controversy arose in California. Earlier this month, Governor Brown signed Senate Bill 1241, which prohibits an employer from requiring California employees to bring employment claims against an employer in any venue outside California. Thus, employers may not require employees to sign a forum section clause dictating litigation or arbitration that occur outside California.

On September 29, 2016, the Governor signed into a law a new requirement for Cal/OSHA to create regulations regarding indoor heat hazards in the workplace.

The California Division of Occupational Safety and Health, better known as Cal/OSHA, already has standards for outdoor heat hazards. For example, shade needs to be provided if it is over 80 degrees out.  It is well known that employers in California must have an Injury and Illness Prevention Program (“IIPP”) that complies with these standards.

In 2014, the California Supreme Court decided in Iskanian that individuals cannot be required to waive their right to be a representative and bring group/class claims under the Private Attorney General Act (“PAGA” or the “Act”). PAGA authorizes an “aggrieved employee” to bring a civil action personally and on behalf of other employees to recover civil penalties for an employer’s violations of the California Labor Code. The Act anticipates that the plaintiff will essentially act for the attorney general in enforcing the Labor Code. The Iskanian court found that an employee cannot waive the ability to arbitrate as a collective group.  First, it is not the individual’s right to waive. Second, the Court reasoned that making employees bring separate claims through arbitration would frustrate the goal of the Act by creating more litigation.

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